Below are the comments of Scott Houde, Esq., organizer of the May 21, 2015, continuing education program on OUI defense in which I will participate with John Webb, Esq., and Scott Gardner, Esq. Below that is a link to the sign-up form. I Hope to see lots of you there!

Greetings Colleague(s),

On Thursday, May 21, 2015, the York Bar Association will be having an OUI CLE entitled, “The OUI Case: Real Issues – Real Defenses.” The CLE will be from 12:30-5:00 and will be held at the Saco Ramada Inn located on 352 North Street in Saco, Maine. The CLE will provide 4 MCILS Approved Criminal Law CLE credits for just $60! Panelists will include John Webb, Ed Folsom, and Scott Gardner. These are the same panelists that received rave reviews for the OUI CLE they did for the YBA last year. John, Ed, and Scott have extensive experience with OUI law and are widely considered as three of the best OUI attorneys in Maine. The four (4) MCILS approved CLE credits you will receive will fulfill the CLE requirements for the MCILS OUI panel.

This is a wonderful opportunity to learn extremely useful information from some talented OUI attorneys, all at an affordable price. Last year, people came from all over the State in inclement weather to hear these panelists talk about OUI. And everyone left feeling it was one of the most useful CLE’s they have ever been to. We intend on delivering the same quality CLE this year. Attached with this CLE is the sign-up form and bios of the panelists. We hope you can make it. I’d encourage you to sign up soon because we are expecting the CLE to fill up quickly.

]]>http://edfolsomlaw.com/2015/02/announcement-may-21-2015-york-bar-association-oui-cle-saco/feed/0THE 1ST AMENDMENT & THE COWED PRESS.http://edfolsomlaw.com/2015/01/1st-amendment-cowed-press/
http://edfolsomlaw.com/2015/01/1st-amendment-cowed-press/#commentsSun, 11 Jan 2015 02:44:00 +0000http://edfolsomlaw.com/?p=1798THE 1ST AMENDMENT & THE COWED PRESS. Posted by Edmund R. Folsom, Esq. January 10, 2015 Free speech is under attack in the free nations of the western world, in a way more effective than I have otherwise seen in my lifetime. We are witnessing that the most effective way to bring our mighty western […]

Free speech is under attack in the free nations of the western world, in a way more effective than I have otherwise seen in my lifetime. We are witnessing that the most effective way to bring our mighty western press to heel–to secure their submission– is to make them understand that giving offense to adherents of a particular religion places them at credible, personal risk of murder. A dozen people were murdered on Wednesday at the French magazine Charlie Hebdo, because that magazine published cartoons that offended adherents of a particular religion whose name, it appears, cannot be mentioned in the mainstream press. Yet, with all the gushing of sentiment in the wake of those murders, that “we are all Charlie Hebdo,” there isn’t a single major news outlet that will show you the cartoons at the center of the news story; the cartoons that created the homicidal fuss. These same cowed news outlets had no problem running photos of Andrew Serrano’s “Piss Christ,” or of Chris Olfili’s painting “Holy Virgin Mary” depicting the Virgin Mary covered in elephant dung, even without those works of “art” having been launched to the forefront of a major news story as the impetus for mass murder. But then, journalists had no reason to fear that the Christians who were affronted by their publications would hunt them down and kill them. The same cannot be said for members of another certain religion; the one in whose name the Paris massacres of this past week were carried out. Our mighty western press knows a credible death threat when it sees one and is prepared to do what’s necessary not to commit a journalistic capital offense. So while Benjamin Franklin was certain that tyranny follows the curtailment of free speech, and while the very first amendment in the U.S. Constitution’s Bill of Rights reflects that concern, by prohibiting the U.S. Government from abridging freedom of speech or press, none of that can save us from the threat we now face. We have reached a point where western governments seemingly cannot protect us from the credible threat of murder for the exercise of free speech; where instead of unequivocally condemning the murders, the U.S. government has at times suggested to us that the exercise of free speech was a blameworthy cause—murder as a righteous reaction to religious insult (see Benghazi talking points); and where the U.S. and other western governments refuse to publicly acknowledge the ideology behind these purportedly insult-avenging murders, or the source of the ideology. In this, our governments have themselves submitted. And I wonder, what is the value of a “free press” in the thrall of a murderous criminal enterprise it refuses to confront?

]]>http://edfolsomlaw.com/2015/01/1st-amendment-cowed-press/feed/0LIE-INS, DIE-INS AND POLICE SHOOTINGShttp://edfolsomlaw.com/2014/12/lie-ins-die-ins-police-shootings/
http://edfolsomlaw.com/2014/12/lie-ins-die-ins-police-shootings/#commentsSun, 07 Dec 2014 18:15:08 +0000http://edfolsomlaw.com/?p=1779LIE-INS, DIE-INS AND POLICE SHOOTINGS Posted December 7, 2014 By Edmund R. Folsom Just as every cop is a criminal And all the sinners saints As heads is tails Just call me Lucifer ‘Cause I’m in need of some restraint “Sympathy For The Devil,” The Rolling Stones If nothing else, Michael Brown’s death […]

If nothing else, Michael Brown’s death by police shooting, in Ferguson, MO, and the death by police asphyxiation of Eric Garner, in New York City, should serve to warn the uninitiated that it’s extremely dangerous to try to wrestle a gun away from and attack a police officer right after you commit a robbery, or to fight with officers who are attempting to arrest you for even the most trivial of crimes. Even if you are not dealing with officers who are prone to serve up dollops of excessive force at the first colorable excuse, you will be dealing with officers who want to go home at the end of their shift alive, kicking and uninjured. Anyone who causes police to think “it’s either you or me, about to be injured or killed,” or who tries to self-determine, by use of force, whether he will be arrested or not, is making a foolish mistake. No cop is bound by law to bear that risk or to let the suspect’s will prevail. Are there lots of cops who traffic in excessive force? Oh yes, there are! But neither the Michael Brown nor the Eric Garner case stands out as a particularly good example. Is it ridiculous that Eric Garner was killed during his attempted arrest for selling individual cigarettes on the street? Yes, it is, but that’s in part because, in New York City, selling individual cigarettes is a criminal offense for which a person can be lawfully arrested to begin with. Arrests are serious matters, and they should be reserved for violations of law serious enough to warrant them, as opposed to unserious matters more appropriately handled with a ticket for a civil infraction. But once society chooses to make something a crime for which a person can be arrested, chaos would rule if the cops tasked with enforcing those laws were required to let people who violate them choose whether or not to submit to arrest (and by the way, there are probably few who fight arrest who don’t scream that police are breaking their arms, cutting off their circulation or choking them to death). I’m all for keeping to a minimum those interactions between police and members of the public that can lead the former to apply handcuffs to the latter, because the potential for ugliness in each of those interactions is immense. On the other hand, it’s hard to imagine a way to eliminate the potential for ugliness when a person decides to wrestle a cop over his gun, other than to not go there in the first place.

In Maine, quite a few people have been shot to death by police. According to a 2012 series in the Portland Press Herald/Maine Sunday Telegram, police in Maine shot at 101 people between 1990 and 2012. In fact, just this past week, a woman with a gun was shot to death in South Berwick, in the 10th Maine police shooting, and 6th shooting death, this year. A fair number of the people shot by Maine police were mentally ill and in distress. Just maybe, the “you or me” moment in some of those cases could have been avoided by a less aggressive or more skilled handling of the situation. But in all of those cases, the officers were determined by the A.G.’s Office to have been justified in pulling the trigger when their “you or me” moment arrived. Where were the “lie-ins” and the “die-ins” for any of those?

]]>http://edfolsomlaw.com/2014/12/lie-ins-die-ins-police-shootings/feed/0Maine Ignition Interlock Device Vendors & Installers.http://edfolsomlaw.com/2014/11/maine-ignition-interlock-device-vendors-installers/
http://edfolsomlaw.com/2014/11/maine-ignition-interlock-device-vendors-installers/#commentsThu, 20 Nov 2014 21:31:57 +0000http://edfolsomlaw.com/?p=1759Posted by Edmund R. Folsom November 20, 2014 Maine Ignition Interlock Device Vendors & Installers. The following is a list of Vendors and Installers of approved ignition interlock devices for the State of Maine, reflecting installer information available from the BMV’s website on November 20, 2014, and cost information provided by the respective vendors in […]

The following is a list of Vendors and Installers of approved ignition interlock devices for the State of Maine, reflecting installer information available from the BMV’s website on November 20, 2014, and cost information provided by the respective vendors in July of 2014. Those seeking license reinstatement with an installed ignition interlock device should contact the vendors and installers directly for the most current available information.

*Maine regulations require installers to service and recalibrate devices 30 days after installation and at intervals no more than 60 days thereafter. A device installed in a first offender’s vehicle will therefore require 2 recalibrations.

]]>http://edfolsomlaw.com/2014/11/maine-ignition-interlock-device-vendors-installers/feed/0SEARCHES & SEIZURES, LIBERTY VS. SECURITYhttp://edfolsomlaw.com/2014/10/searches-seizures-liberty-vs-security/
http://edfolsomlaw.com/2014/10/searches-seizures-liberty-vs-security/#commentsSat, 18 Oct 2014 21:27:24 +0000http://edfolsomlaw.com/?p=1732SEARCHES & SEIZURES, LIBERTY VS. SECURITY Posted by Edmund R. Folsom October 18, 2014 A few loosely related matters caught my attention in the news yesterday. One was a piece by Charles Krauthammer, in which he criticized President Obama for once declaring that a choice between liberty and security is a false choice. Krauthammer states: “On the contrary. […]

A few loosely related matters caught my attention in the news yesterday. One was a piece by Charles Krauthammer, in which he criticized President Obama for once declaring that a choice between liberty and security is a false choice. Krauthammer states: “On the contrary. It is the eternal dilemma of every free society.” The other bits are examples of that dilemma, demonstrated in ways large and small. There was an op ed piece about the Heien v. North Carolina case, recently argued before the U.S. Supreme Court. Then there was a story about the FBI’s complaints about technology companies encrypting smartphone and operating system data. And there was a story about a search conducted by the Biddeford P.D. and Maine Drug Enforcement Agency, of lockers and cars at Biddeford High School and the Biddeford Regional Center for Technology, using three drug-sniffing dogs.

In the Heien case a police officer stopped a vehicle under the belief that it was in violation of North Carolina law, because it only had one working brake light. In fact, on the date of the stop, North Carolina law only required vehicles to have one working brake light. The question in that case is whether the stop, which led to the discovery of illegal drugs, was a constitutionally unreasonable search and seizure, given that it was based on the officer’s misunderstanding of law. The answer will strike the balance between the freedom to travel unmolested by the police and whatever public safety gains are to be had from letting police use the fruits of searches and seizures grounded in their failure to understand applicable law.

In the case of data encryption, the FBI argues that a balance must be struck that prevents individuals from keeping secrets from the government. The FBI complains that investigations will be frustrated if personal data is encrypted to make it inaccessible even when agents have a search warrant.

In cases of drug sniffing dogs used to comb through high schools and their parking lots, the balance has already been struck in favor of whatever security is to be gained by conducting such searches. First, the Supreme Court has long held that we all have a diminished expectation of privacy in our automobiles, so no warrant is required to search an automobile as long as probable cause exists for the search. Second, the Supreme Court has also held that running a drug-sniffing dog around the outside of a motor vehicle is not a “search,” for Constitutional purposes, and that an alert on a vehicle by a trained drug-sniffing dog can provide probable cause for a search. Third, the Supreme Court has pretty much declared open season on searches of school lockers for contraband.

In the Biddeford High drug sweep, there were no drugs found, even though the drug-sniffing dogs did alert a few times. I am bothered by the idea of a large group of police and drug-sniffing dogs roving through a high school and shaking down lockers, developing probable cause by use of their drug-sniffing dogs to search areas where there is no contraband. I don’t like the particular balance that strikes between liberty and security, at all. It’s seems a little heavy handed. It smacks a little too much of the totalitarian for my taste. As for the dog sniffs in the parking lot, people should understand, there’s not a thing in current U.S. Supreme Court interpretations of the Constitution that would make it an unreasonable search for the police to dragnet every public area of an entire town, running their drug- sniffing dogs around all vehicles parked in those areas, using their dog’s alerts as probable cause for warrantless searches of the vehicles they alert upon, all day, any day, in any town U.S.A. How does that balance between liberty and security strike you?

As for the FBI’s complaints, I find myself a little wary. I can envision situations where the inability of police to access encrypted data could result in loss of life. But I also know in my bones that there are ultimately no self-imposed limits on how far police and intelligence-gathering agencies will intrude into the realm of personal privacy if left to their own devices. When they call for laws that make it impossible to communicate electronically without the government being able to snoop, I know they are calling for a power they will abuse as soon as they have the chance to abuse it.

As for police who stop and search people based on a law they believe exists but that actually doesn’t, I think we should encourage police to know the state of the law by depriving them of the fruits of such blunders. Otherwise, we will no doubt witness lots of fuzzy understanding of the law in furtherance of excuses to intrude on personal liberty. Reward lack of knowledge and, by God, it’s lack of knowledge you’ll get.

The choice between liberty and security is the dilemma of every free society. One way to eliminate it is to tip so far in favor of security as to no longer be a free society. At that point, I bet there would be lots of police officers running around with police dogs sniffing here and there, and officers stopping and searching people based on laws that don’t quite exist, and laws in place to ensure that all communications are accessible to government scrutiny. Something about those parallels gives me the creeps.

The 2012 amendment to Maine’s aggravated assault statute, 17-A M.R.S.A. §208, have received recent media attention because of the spike they created in the number of aggravated assault prosecutions brought under the theory of “extreme indifference to the value of human life.” In 2011, there were 29 aggravated assault prosecutions in Maine based on a theory of extreme indifference to the value of human life. In 2012, that number jumped to 79, and in 2013 the number jumped again to 170. Compare this to the 104 aggravated assault prosecutions commenced in 2013 based on serious bodily injury and 183 based on the use of a dangerous weapon, and it begins to look like a strangulation epidemic has broken out in Maine. What’s going on here?

There are three ways a person can commit an aggravated assault in Maine. Aggravated assault is committed when a person intentionally, knowingly or recklessly either: (1) causes serious bodily injury (defined as an injury that creates a substantial risk of death, or serious permanent disfigurement, or the loss or substantial impairment of the function of a bodily member or organ, or extended convalescence necessary for recovery of physical health) to another; or (2) causes bodily injury to another with the use of a dangerous weapon (defined as a firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which, in the manner it is used or threatened to be used is capable of producing death or serious bodily injury); or (3) causes bodily injury (defined as physical pain, physical illness or any impairment of physical condition) to another under circumstances manifesting extreme indifference to the value of human life. For a very long time, the aggravated assault statute has contained an explanation that circumstances manifesting extreme indifference to the value of human life “include but are not limited to, the number, location or nature of the injuries, the manner or method inflicted or the observable physical condition of the victim.” In other words, it has long been the case that a person commits aggravated assault by intentionally, knowingly or recklessly causing bodily injury to another person under circumstances that demonstrate the perpetrator’s extreme indifference to whether the victim lives or dies. Pushing a person out a third story window or pushing a person off a cliff might do, regardless whether the conduct actually results in serious bodily injury. The ultimate issue has always been whether the defendant’s conduct in-fact manifests extreme indifference to the value of human life.

As discussed above, prior to the 2012 amendments, the aggravated assault statute stated that circumstances manifesting extreme indifference to the value of human life “include but are not limited to, the number, location or nature of the injuries, the manner or method inflicted, or the observable physical condition of the victim.” The 2012 amendments expanded the list of circumstances manifesting an extreme indifference to the value of human life by adding, after the words “condition of the victim,” the words “or the use of strangulation.” These amendments also state that “‘strangulation’ means the intentional impeding of the breathing or circulation of the blood of another person by applying pressure on the person’s throat or neck.”

Under the ordinary definition of the term, a person who “strangles” another person causes the other person’s death by squeezing or constricting the other person’s neck. The Boston Strangler was a strangler because of the particular way he killed his victims. The Oxford English dictionary defines the term “strangle” as follows: “Squeeze or constrict the neck of (a person or animal), especially so as to cause death: the victim was strangled with a scarf.” The Merriam-Webster dictionary defines the term “strangle” this way: “To kill a person (or animal) by squeezing the throat.” But, under the 2012 amendments to Maine’s aggravated assault statute, “strangulation” is defined to include conduct that does not necessarily produce a substantial risk of death, or any actual risk of death at all. When it comes to impeding a person’s breathing or circulation by applying pressure to the person’s neck, there is no need for the particular conduct to actually manifest an extreme indifference to the value of human life. Instead, the conduct simply manifests an extreme indifference to the value of human life by statutory definition. The scheme appears to run as follows: (1) a person is guilty of aggravated assault if he intentionally, knowingly or recklessly causes bodily injury to another under circumstances manifesting an extreme indifference to the value of human life; (2) strangulation is a circumstance that manifests an extreme indifference to the value of human life; (3) strangulation means impeding (however slightly?) the breathing or circulation of another person by applying pressure on the person’s neck or throat; (4) therefore, intentionally, knowingly or recklessly causing bodily injury to another person, in circumstances involving the impeding of breathing or circulation by applying pressure on the person’s neck or throat, is aggravated assault.

In a recent Portland Press Herald article on the strangulation amendments and their effect on aggravated assault prosecutions http://www.pressherald.com/2014/09/01/charges-go-way-up-in-maine-after-law-change-on-strangling/, a member of Maine’s Criminal Law Advisory Committee was referenced stating that a judge or jury must still conclude that strangulation in a given case represents indifference to human life. While this is true, the statement is misleading, because indifference to human life now appears to be operationally defined, by statute, as manifest in all cases involving strangulation, and because strangulation has been redefined to include even the slightest and most transient impeding of breathing or circulation through pressure applied to the throat or neck (Maybe the Legislature really only meant to specifically identify choking as a circumstance that could be taken, in a given case, to manifest extreme indifference to the value of human life, but if that was their intention they did a poor job expressing it).

Why did the Maine Legislature distort the meaning of the terms “strangulation” and “circumstances manifesting extreme indifference to the value of human life” when there were other ways to achieve the same result without doing violence to plain language or the Maine Criminal Code? For instance, the Legislature could have specifically included within the term “dangerous weapon,” human hands or any other object or materials used to impede the breathing or blood circulation of another person by applying pressure on the person’s throat or neck. Alternatively, the Legislature could have added a subsection to the aggravated assault statute, defining aggravated assault as intentionally, knowingly or recklessly causing bodily injury to another in circumstances involving the impeding of the other person’s breathing or blood circulation through pressure applied to the person’s throat or neck. What was gained by pursuing a path of indirection instead?

One argument for punishing the choking of another person as aggravated assault is that, in the context of domestic violence, it tends to be part of an escalating pattern that leads to homicide in a significant number of cases. It can also be extraordinarily terrifying to the victim. And placing a person weaker than yourself in fear of death by asphyxiation is deeply sick and reprehensible. Those are perfectly valid arguments for singling-out the conduct for increased punishment. But the particular way the Legislature chose to deal with the behavior creates the impression of an epidemic in which, in 2013, upwards of 170 men in this State were prosecuted for manifesting extreme indifference to the value of human life, by strangling upwards of 170 women. Wow, that’s a lot of strangulation and extreme indifference to the value of human life in a year when there were 25 non-negligent homicides altogether in the State of Maine!

]]>http://edfolsomlaw.com/2014/09/aggravated-assault-depraved-indifference-strangulation/feed/0FERGUSON, MISSOURI, 8/19/2014.http://edfolsomlaw.com/2014/08/ferguson-missouri-8192014/
http://edfolsomlaw.com/2014/08/ferguson-missouri-8192014/#commentsTue, 19 Aug 2014 20:48:10 +0000http://edfolsomlaw.com/?p=1697Posted by Edmund R. Folsom August 19, 2014 Why was Michael Brown shot to death by a Ferguson, Missouri, police officer? Don’t bother trying to tell me, because one thing I’m sure of is you don’t have a clue. None of the pundits spouting off about it have a clue. Nobody in the streets of Ferguson, […]

Why was Michael Brown shot to death by a Ferguson, Missouri, police officer? Don’t bother trying to tell me, because one thing I’m sure of is you don’t have a clue. None of the pundits spouting off about it have a clue. Nobody in the streets of Ferguson, Missouri, who wasn’t there to witness events first-hand has a clue. If you have learned the “facts” third-hand, all you have to go on are shards of distorted information. This is another one of those moments (see also the Tawana Brawley case, the William Kennedy Smith rape case, the Duke Lacrosse rape case, the George Zimmerman/Trayvon Martin case) all the agenda mongers lie in wait for, so they can pounce and start screaming that this case perfectly illustrates everything they’ve been claiming all along. Agenda pushers don’t care what the facts are. They only care about superimposing their script. They already knew what the facts were before Michael Brown was even shot, because they wrote the script long before. Now is the time for street theater of the hype-meisters, bonfire of the insanities, and it all perfectly illustrates one thing only: They don’t need no stinking facts for this morality play!

]]>http://edfolsomlaw.com/2014/08/ferguson-missouri-8192014/feed/0CHANCES OF OUI ARREST HIGH IF STOPPED BY MAINE POLICE.http://edfolsomlaw.com/2014/08/chances-oui-arrest-stopped-maine-police-remain-high/
http://edfolsomlaw.com/2014/08/chances-oui-arrest-stopped-maine-police-remain-high/#commentsFri, 08 Aug 2014 19:38:50 +0000http://edfolsomlaw.com/?p=1687Posted by Edmund R. Folsom August 8, 2014 In a previous post, I examined the sharp downward trend in OUI arrests in Maine overall, accompanied by a sharp upward trend in alcohol test results below .0.08%. http://edfolsomlaw.com/2012/11/beware-fewer-oui-arrests-increased-risk-of-arrest-if-stopped/ In 2006, the Bureau of Motor vehicles reported a total of 9,617 OUI arrests in Maine. By […]

In a previous post, I examined the sharp downward trend in OUI arrests in Maine overall, accompanied by a sharp upward trend in alcohol test results below .0.08%. http://edfolsomlaw.com/2012/11/beware-fewer-oui-arrests-increased-risk-of-arrest-if-stopped/ In 2006, the Bureau of Motor vehicles reported a total of 9,617 OUI arrests in Maine. By 2012, that number had fallen to 7,014. Of those 7,014 people, 1,184 people age 21 or over who took a test to determine their alcohol level were tested below 0.08%. That represents 16.88% of total arrestees who produced a result less than 0.08% in 2012. In 2013, the reported overall number of OUI arrests spiked to 8,229. Of that number, 1,534 people age 21 or over who were tested for an alcohol level produced a result below 0.08%, which represents 18.64% of all 2013 OUI arrests. The bottom line: Police are increasingly unafraid of being wrong when they arrest people for OUI.

The Maine Legislature made some changes to Maine’s prostitution statutes over the past year or so, attempting to address the problem of “human trafficking” or “sex trafficking.” Some odd twists have resulted from these changes. Last year, LD 1159, “An Act to Address Human Trafficking, Sex Trafficking and Prostitution,” was enacted, becoming effective on October 9, 2013. This legislation revamped the old offenses of promotion of prostitution, aggravated promotion of prostitution, and patronizing prostitution of a minor into the new offenses of sex trafficking, aggravated sex trafficking, and patronizing prostitution of a minor or person with mental disability. The bill also changed the available range of punishment for engaging a prostitute. Prior to LD 1159, both first-offense engaging in prostitution and first-offense engaging a prostitute carried identical maximum punishments. Both Class E crimes were punishable by a fine only, up to a maximum of $1,000.00. LD 1159 eliminated the fine-only limitation for engaging a prostitute, but left the limitation intact for the crime of engaging in prostitution. As of October 9, 2013, therefore, a first offender who engages a prostitute– by either paying or agreeing to pay for a sexual act or sexual contact– can be fined up to $1,000.00 or jailed for up to 6 months, or both. On the other hand, a first offender who engages in prostitution– by engaging in, offering to engage in, or agreeing to engage in sex for money—cannot receive any time in jail, but can only receive a fine of up to $1,000.00. In context, it is easy to understand how this came to pass, but it potentially leads to some odd and fundamentally unfair results.

As the title of the legislation indicates, LD 1159 was concerned with people being trafficked in the sex trade. The idea was to increase punishment for those who procure, entice and keep people involved in prostitution through coercion, including the use of violence, threats, and the administering or withholding of addictive substances. Viewed in this context, the disparity in maximum punishments between first-offense engaging a prostitute and first-offense engaging in prostitution makes sense. Those who engage in sex with enslaved young and disabled people help promote the business of human trafficking– their money flows directly to human traffickers. In this way, there are circumstances in which acting as a first-offense john can be much more serious than the most serious forms of acting as a first-offense prostitute. The maximum possible punishment for a crime should be proportional to the most serious way the crime can be committed, so the maximum punishment for engaging a prostitute should be more serious than the maximum punishment for engaging in prostitution. But removed from the context of human trafficking concerns, the disparity in available punishments for johns versus prostitutes lends itself to bad policy, as I will attempt to illustrate below.

I will go out on a limb and venture that there are women who engage in prostitution who are not enslaved by human traffickers or otherwise coerced into it. I venture that there are also men who have nothing to do with sex slavery who engage these women as prostitutes. And yet, if two such people find each other and do what each has bargained for, in Maine the female has the luxury of knowing she cannot be jailed for her first offense, while the male should know he can be hauled off to jail. Last year, a Google executive named Forrest Hayes died of a heroin overdose on his yacht near Santa Cruz, California. According to news reports, Mr. Hayes’ guest at the time was a prostitute named Alix Tichelman. Ms. Tichelman has recently been charged with Manslaughter in Hayes’ death, under the theory that she administered the heroin that caused his overdose. http://www.reuters.com/article/2014/07/16/us-usa-california-homicide-idUSKBN0FL27320140716. Let’s suppose the romp between Tichelman and Hayes took place while Hayes’ yacht was moored in Bar Harbor. Let’s also remove heroin from the picture for a moment and suppose the police busted the pair on a prostitution rap. Ms. Tichelman, seller of sex, could not get more than a fine for her conviction, but Mr. Hayes, the buyer, could go to jail. Why should Hayes actually receive a jail sentence while Tichelman receives a fine? Is Tichelman to be pitied for selling sex while Hayes is to be harshly punished for providing a market? Now let’s add the heroin back into the mix and suppose that Tichelman furnished or sold it to Hayes, and that Hayes did not die. As the furnisher or seller of the heroin, Tichelman would be liable for a much greater penalty than Hayes would be for buying it. Why? Shouldn’t Tichelman be pitied for selling heroin while Hayes should be harshly punished for providing a market?

Just because jail sentences are available for first-offense johns and not for first-offense prostitutes doesn’t mean it is appropriate to jail all first-offense johns. If jail for first-offense johns is confined to the context of sex trafficking, we will not end up with the Alix Tichelman patrons going to jail while all the Alix Tichelmans skate on fines. The trouble is, I am told, we now have prosecutors routinely seeking jail sentences for johns outside the context of sex trafficking, in cases that involve an attempt to solicit sex from an undercover police officer for instance.

To return to the changes worked by LD 1159, although that legislation left women exposed to less punishment for first-offense prostitution than their patrons can receive for their first-offense patronage, women were still left to be branded and fined as criminals for engaging in prostitution, even if they were coerced into it by sex traffickers. This anomaly was recently addressed by L.D. 1730, “An Act To Assist Victims of Human Trafficking,” which became effective on April 10, 2014. L.D. 1730 makes it an affirmative defense to a charge of engaging in prostitution that the person was “compelled to do so,” and defines being “compelled to do so” in fairly broad terms. Now, a person who can establish that she engaged in prostitution because she was compelled to do so by a sex trafficker will no longer be stigmatized and fined as a criminal. This means that the only people who can any longer be convicted of the crime of engaging in prostitution are those who were not compelled to do so. And yet, those who choose to engage in prostitution still can only be punished by a fine for a first offense, while those who choose to pay for sex can be sent to jail for up to 6 months for a first offense. Is this because the Legislature has decided that, because some people who pay for sex end up promoting sex trafficking, all people who pay for sex should be treated more harshly than all people who receive payment to engage in sex? This is highly unlikely.

Apart from creating an affirmative defense to the charge of engaging in prostitution, LD 1730 also created an “assessment” to be leveled against those convicted of certain crimes, to help compensate victims of human trafficking. The assessment is $500.00 for conviction of sex trafficking, a first offense of engaging in prostitution, or a first offense of patronizing the prostitution of a minor or mentally disabled person. The assessment is $1,000.00 for conviction of aggravated sex trafficking, a second or subsequent offense of engaging in prostitution, or a second or subsequent offense of patronizing prostitution of a minor or mentally disabled person. These assessments represent an apparent legislative determination of the relative degrees of culpability for human trafficking among various players in the prostitution trade. On the patronizing/engaging a prostitute side of the ledger, the Legislature apparently determined that those who patronize the prostitution of a minor or mentally disabled person are culpable in human trafficking. On the promotion/engaging in prostitution side of the ledger, the Legislature determined that those who choose to engage in prostitution (those convicted of the offense because they were not compelled to do so) should also have to compensate victims of human trafficking. But note which category of prostitution offender the Legislature does not hold financially responsible to compensate victims of human trafficking: those convicted of engaging a prostitute, not involving a minor or a mentally disabled person. So when a D.A. routinely seeks jail sentences for those who are convicted of first-offense engaging a prostitute, if the argument for jail is rooted in the general culpability of johns for human trafficking, the argument flies in the face of the Maine Legislature’s own determination on that issue.

What then is the argument for a policy demanding jail for a first-offense engaging a prostitute conviction in general, in a statutory scheme where those who choose to engage in prostitution can only receive a fine? Is the argument rooted in anything other than a sexist belief that female prostitutes should be pitied for their fallen state, while their male patrons should be jailed for the exploitation and insult? I doubt it, and that belief is hardly good grounds for attempting to enshrine a double standard of routine jail-for-johns/fines-for-prostitutes as a matter of prosecutorial and judicial policy.

The reality is that if you eliminate the ‘Johns’ from the equation (i.e. males/females purchasing human-beings for sex), ‘prostitution’ would cease to exist. You seem to favor and sympathize with the plight of the ‘John’ while being under the assumption that prostitutes actually ‘like’ what they do. Here is but one website (among many) which one would hope might enlighten you regarding your obvious bias in defense of the ‘poor Johns’ ( http://www.rapeis.org/activism/prostitution/prostitutionfacts.html ).

Not only is it justified that ‘Johns’ should receive this jail time as they are at the root of this problem, but prostitutes should ‘not’ receive a fine at all. These are individuals who have been forced into prostitution due to extreme hardship (e.g. homelessness, drug addiction, sexually abused either during their childhood or their adulthood or both (i.e. literally ‘conditioned’ to allow others to utilize their bodies for sex), etc.). If anything, we should have stricter/harsher consequences for ‘Johns’ as “up to 6 months for a first offense” is no where near enough while prostitutes should instead receive the shelter/sustenance, psychological and substance-abuse counseling, and educational opportunities necessary for them to get off the streets for good.

Sincerely,

Catherine S. Caron

To This I Reply:

Ms. Caron’s email reflects the underlying assumptions in a political movement to uniformly de-stigmatize prostitutes while uniformly punishing their patrons as accomplices in human trafficking. The central theme is: If Johns were eliminated human trafficking would end, because nobody would traffic people for sex if there were no buyers. To begin, note the passive-aggressive ad hominem attack in Ms. Caron’s assertion that I “seem to sympathize with the plight of the ‘John’ while being under the assumption that prostitutes actually ‘like’ what they do.” Whether any prostitutes actually like what they do is entirely beside the point. Lots of people voluntarily engage in behaviors that I personally view as vile and self-destructive, and lots of people do things for income that they find barely palatable. But unless you are willing to accept that all sex-for-money exchanges involve sellers who are victims of human trafficking, isn’t it possible to rationally believe it’s bad policy to punish people as accomplices in human trafficking who in fact are not? Evidently even if it’s possible to rationally believe that, it’s nevertheless unwise to express it unless you want to be cast as complicit with the villain in this morality play.

Check out the link Ms. Caron provided in her email. It connects with an advocacy piece whose central theme is summarized in the following quotes: “[T]he experience of prostitution is just like rape,” and “Prostitution is an act of violence against women which is intrinsically traumatizing.” I also note that the piece refers to prostitutes exclusively as “women” (some of whom started as “traditional wives” before escaping their abusive husbands and turning to prostitution to support themselves and their children) or “girls.” So there you have it: All prostitutes are women or girls who have been forced into the sex trade by human traffickers; Johns are all men who, when they pay these females for sex, are raping them; therefore all these men should be jailed for a long time and all these women should be pitied and supported for making money this way; and if you’re not down with this cause, you simply haven’t been properly educated or “enlightened” on the subject.

I do get it: One size fits all because, in furtherance of the agenda, the ends justify the means. Never hesitate to break a few other peoples’ eggs to make your omelet.

]]>http://edfolsomlaw.com/2014/07/sex-trafficking-prostitution-jailing-johns/feed/0MAINE OUI CHANGES EFFECTIVE 8/1/14.http://edfolsomlaw.com/2014/07/maine-oui-changes-effective-8114/
http://edfolsomlaw.com/2014/07/maine-oui-changes-effective-8114/#commentsFri, 11 Jul 2014 18:51:57 +0000http://edfolsomlaw.com/?p=1658Posted July 11, 2014, by Edmund R. Folsom. A couple of recent changes to Maine’s OUI laws take effect on August 1, 2014. As a general rule, prior OUI convictions serve to increase mandatory punishment for subsequent offenses, but only if the prior offense was within 10 years of the new conduct. For anyone who […]

A couple of recent changes to Maine’s OUI laws take effect on August 1, 2014. As a general rule, prior OUI convictions serve to increase mandatory punishment for subsequent offenses, but only if the prior offense was within 10 years of the new conduct. For anyone who commits new OUI conduct on or after August 1, 2014, the 10-year timeframe will no longer be calculated from the date of docket entry of the prior conviction. Instead, the 10-year timeframe will be calculated from the date the sentence was imposed for the prior conviction. Under the older method of calculation, two people might have been sentenced for OUI on the same date and might each have committed a subsequent OUI on the same date 10 years and 1 day later. Yet while one person’s prior conviction would count to enhance punishment for the later OUI the other’s would not, simply because the court clerk happened to enter one person’s conviction in the docket record a day or so after entering the other. The new method of calculation eliminates any such unequal treatment.

Also for conduct that occurs on or after August 1, 2014, there will no longer be any limit on the age of a prior conviction that can be used to elevate new OUI conduct to Class B based on prior convictions. The punishment category for operating under the influence is increased to Class B any time the state pleads and proves a defendant was convicted of: (1) a prior OUI homicide, or (2) a prior Class B or Class C OUI under the current Maine OUI statute, 29-A M.R.S.A. §2411, or its predecessor, 29 M.R.S.A. §1312-B. Ever since September 28, 2011, there has been no limit on the age of a prior OUI homicide conviction that can be used to increase the punishment category for a new OUI to Class B. However, for conduct committed prior to August 1, 2014, any prior Class B or C OUI conviction used to increase punishment for a new OUI charge cannot precede the new conduct by more than 10 years. Effective for conduct committed on or after August 1, 2014, there will no longer be any limit on the age of a prior Class B or Class C OUI conviction used to increase punishment for a new OUI. In other words, anyone who was ever convicted of a Class B or C OUI, under the current Maine OUI statute or its predecessor, may be prosecuted for a Class B OUI if they drive under the influence on or after August 1, 2014, regardless how long ago the prior Class B or C OUI conviction occurred. This amounts to a lifetime look-back period for anyone who was previously convicted of a felony OUI in Maine. The clear message from the State of Maine is: “Do not go there again.”